The federal use of national guard troops falls under the “militia clauses” of the Constitution: Article I, Section 8, Clauses 15-16:

The Congress shall have Power To

…provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions….

…provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

In short, there are three situations where the organized militia (renamed as the National Guard in the 1903 Dick Act) may be called into service for the federal government.

1. A military invasion of the United States

2. An insurrection

3. To execute the Laws of the Union (provided those laws are constitutional in the first place, of course)

Does the Ebola crisis in Africa fit under any of the three above?

If, like me, you realize that it doesn’t, I suggest that you consider the advice of Daniel Webster when it came to an unconstitutional use of the organized militia.

“The operation of measures thus unconstitutional and illegal ought to be prevented by a resort to other measures which are both constitutional and legal. It will be the solemn duty of the State governments to protect their own authority over their own militia, and to interpose between their citizens and arbitrary power. These are among the objects for which the State governments exist”

]]>http://blog.tenthamendmentcenter.com/2014/10/to-combat-ebola-obama-plans-unconstitutional-use-of-national-guard/feed/0Obama Mulls More Military in Iraq: States Should Refuse to Participatehttp://blog.tenthamendmentcenter.com/2013/11/obama-mulls-more-military-in-iraq-states-should-refuse-to-participate/
http://blog.tenthamendmentcenter.com/2013/11/obama-mulls-more-military-in-iraq-states-should-refuse-to-participate/#commentsWed, 27 Nov 2013 15:08:24 +0000http://blog.tenthamendmentcenter.com/?p=17849The Nov. 5 edition of Stars and Stripes reported that President Obama is considering renewed military assistance to Iraq.

After a White House meeting with Iraqi Prime Minister Nouri al-Maliki, Obama said he shares al-Maliki’s fears about militants’ growing foothold in Iraq’s western province and will join the Iraqi leader’s effort to crack down. Administration officials said this would include growing intelligence support and new weaponry.

At present, there is no open discussion of sending troops back to Iraq, but clearly it’s a possibility. With few U.S. troops available, this would likely require the federal government to push the National Guard back into service.

So, what’s wrong with that?

Recall that each state retains sovereignty except for powers delegated, and the Union (federal government) is subject to its creator – the people of the states. When the feds demand the use of our state militias to fight unconstitutional foreign wars, it is akin to the United Nations forcing its members to fight under its will and direction, an obvious overreach of U.N. authority. The National Guard was intended to serve as a defense force, not an offensive weapon in foreign lands.

The U.S. has not fought under a legitimate declaration of war since WWII. One power the people of the states retain is control over their own National Guard. They can refuse to allow its use in unconstitutional military missions.

Nullification provides a remedy for halting the use of our states’ militias in foreign wars. This proposed bill is a state solution giving the governor the power to refuse to allow the federal government to nationalize its state national guard except for constitutional purposes including: defense of our borders, insurrection or enforcement of constitutional federal laws.

If you want to make serious progress toward nullifying our foreign adventures, this is a bill you can recommend to your state representatives.

We do have the power.

]]>http://blog.tenthamendmentcenter.com/2013/11/obama-mulls-more-military-in-iraq-states-should-refuse-to-participate/feed/0The Pentagon vs Texas and Mississippihttp://blog.tenthamendmentcenter.com/2013/09/the-pentagon-vs-texas-and-mississippi/
http://blog.tenthamendmentcenter.com/2013/09/the-pentagon-vs-texas-and-mississippi/#commentsThu, 05 Sep 2013 11:05:31 +0000http://blog.tenthamendmentcenter.com/?p=17203I was contacted by a reporter from LifeSiteNews.com asking for comment regarding a news item in Texas and Mississippi. According to the Associated Press, the Texas and Mississippi National Guards “won’t give same-sex benefits at some locations,” citing state gay-marriage bans.

Setting aside my own personal view that government-issued marriage license are an affront to the peace and liberty of people from all backgrounds (and were often used in the 19th century as an attempt to prevent interracial marriage), there certainly are some important constitutional issues here.

Constitutionally-speaking, the National Guard of each state is not like a county – a simple political subdivision of the Pentagon. The Constitutional articles of note are:

Article I, Section 8, Clause 15:

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

and Clause 16:

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

In an 18th Century legal sense, “to provide for” generally was used in a more future sense. Such as make plans for, make rules, for, and the like.

Congress can “nationalize” the Guard, but only SO LONG AS it does so to “execute the Laws of the Union, suppress Insurrections and repel Invasions.” It cannot “govern” the Guard expect when “employed in the Service of the United States,” as per the three specific scenarios in Clause 15.

Also, there’s a very important principle known as “anti-commandeering.” The short version? It means that the federal government can’t force states (including their employees) to carry out federal acts. So, should the Congress want to “provide for” the expenses and funding required to provide such benefits to people in the Texas and Mississippi National Guard, they certainly can make a constitutional argument in favor of that. They can also build the offices and hire the people needed to administer those benefits under the “Necessary and Proper Clause” of the Constitution, Article I, Section 8, Clause 18.

They certainly cannot, however, require Texas or Mississippi state employees, acting under the purview of powers reserved to the States under the Constitution – to do this for the federal government. They also can’t require those states to absorb the costs. Not one penny.

As an aside, since there’s no invasion (in the 18th century constitutional sense, that means a military attack), and no insurrection, and Congress hasn’t specifically called up the Guard to execute the “Laws of the Union,” all of the state Guard troops should be retained under state control. And that’s part of why it’s essential for states to consider and pass the “Defend the Guard Act” – http://tenthamendmentcenter.com/legislation/defend-the-guard/